Punjab-Haryana High Court
Rahul Arora vs Central Bureau Of Investigation on 19 March, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: MARCH 19, 2012
Rahul Arora
.....Petitioner
VERSUS
Central Bureau of Investigation
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.R.S.Rai, Senior Advocate with
Mr.Gautam Dutt, Advocate,
for the petitioner.
Mr.Sumeet Goel, Advocate,
for CBI.
Mr.Jatinder Dhanda, Advocate,
for the applicant-intervener.
****
RANJIT SINGH, J.
Through this revision petition, the petitioner has impugned the order dated 31.10.2011 passed by Special Judge (CBI), Haryana, Panchkula, whereby his prayer to summon witnesses from Sudan, has been declined on the ground that this is wholly misconceived and that he had already taken 4 months to examine these witnesses. The CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 2 }:
defence evidence thereafter has been closed and the case was fixed for arguments on 7.11.2011.
It is noticed from the record that the petitioner had earlier also filed a Miscellaneous Petition No.30216 of 2011, which was disposed of as premature on 5.10.2011. The petitioner had approached this Court through the said petition, apprehending that the defence evidence shall be abruptly closed and the parties shall be asked to address arguments. It was alleged that the application filed by the petitioner for examining certain witnesses was statedly not receiving due attention of the Court. This Court, however, found that the prayer, thus, made was premature and had dismissed the petition on 5.10.2011. It was observed that if and when any order closing the defence evidence was made, the petitioner may approach this Court. The petitioner has accordingly approached this Court, when his evidence has been closed by order of the Special Judge.
The facts noticed, in brief, are that the petitioner is facing prosecution under Section 120-B read with Sections 467, 468, 420 IPC and Section 13(1)(d) of the Prevention of Corruption Act. The petitioner is one of the Directors of M/s Himachal Filament (P) Ltd. and has availed financial assistance from Oriental Bank of Commerce, Panchkula (Haryana). He has established a manufacturing export oriented Unit at Kala Amb (Himachal Pradesh). The Unit had commenced production and was in business of exporting the product. The Unit used to take advance against bill of goods sent to foreign country from the Bank after fulfilling the required formalities. It is stated that the Unit became defunct for CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 3 }:
various reasons and the Bank had started recovery proceedings against the Company and its Directors. The Bank had also lodged a complaint against the Company and the Directors, leading to registration of present FIR. It is stated that the matter between the Director of the Company and the Bank has ended in a compromise and the petitioner had already paid a sum of Rs.1.10 Crore to the Bank. The case, however, registered against the Company is still in progress and the recording of prosecution evidence has been concluded on 1.6.2011, after examination of 49 witnesses. The statement of the petitioner-accused was recorded on 26.7.2011 and he has given list of 18 witnesses, which he desires to examine before the Trial Court. On 30.7.2011, the Court heard the petitioner on the application so filed and noticed that the counsel has not explained the purpose of summoning all the witnesses mentioned in the application. When the petitioner was confronted with this situation, his counsel made a statement that he may be allowed to summon the witnesses at his own responsibility. Besides, the counsel also undertook to conclude the defence evidence by August 2011. Dasti summons were given to the petitioner to serve the witnesses at his own responsibility. The case was fixed for 16.8.2011 and thereafter was adjourned to 23.9.2011.
Since most of the witnesses could not be served, the petitioner moved an application on 23.9.2011. Four of the witnesses were residents of Sudan and so could be served only through Embassy. As is averred in the petition, the petitioner went to Sudan Embassy but was advised that the Embassy was exempted by Viana CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 4 }:
Convention for receiving summons directly and advised him to approach Ministry of External Affairs. The petitioner accordingly has gone to the External Affairs Ministry and summons were received by Protocol Officer-II. The petitioner was apprised that minimum 60 to 70 days time was needed for serving summons on the witnesses and for their appearance in the Court. The petitioner accordingly filed an application before the trial Court but the Court has declined the prayer to adjourn the case by observing that responsibility to serve summons was that of the petitioner and hence, long adjournment could not be granted. The case was fixed on 29.9.2011 for recording defence evidence and for arguments.
It is noticed that the petitioner is wanting to examine a representative of M/s Purshotam and Company of Sudan, who used to procure the orders for the Company and himself received the goods from the Company for further transporting it to the concerned customer in Sudan. The goods in question were sent by the said Agent through Jamesh Macn Toch & Co.Ltd. In this background, M/s Purshotam and Company is termed as a necessary witness for reaching a just conclusion for finding whether the documents were forged or not. Other witnesses from Sudan as required are noted as under:-
"(15) M/s Osman Al Sadiq & Co Ltd. P Box No.831 OMDURMAN (Khartoon) Sudan along with record of goods received and order books with M/s Himachal Fillament (P) Ltd.
(16) Akhtar International Ltd Post Box
CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 5 }:
No.1584OMDURMAN (KHARTOON) SUDAN along with
record of dealing with M/s Himachal Filament (P) Ltd. (17) Record Keeper of Import Cargo (inward) port Trust of port Sudan along with record of Inward Cargo received from M/s Himachal Filament (P) Ltd. New Delhi."
These are the parties, which have ordered the goods and, therefore, are necessary to prove that they had placed the order. Pleading that accused in a criminal trial is entitled to proper and reasonable opportunity to produce his defence, it is urged that it would be responsibility and duty of the Court to summon and procure the witnesses, which are necessary for the ends of justice. It is in this background that the petitioner had earlier filed Criminal Misc. M No.30216 of 2011, referred to above. Now he has approached this Court, when his request for summoning the witnesses has been declined and the defence evidence has been closed.
When this case came up for hearing, the counsel for the petitioner had submitted that the petitioner would suffer a serious prejudice to put up his defence, if the impugned order is allowed to stand. The counsel also pleaded for reasonable time for procuring the witnesses from Sudan and stated that the Embassy had sought time of 30 days to do the needful. At that stage, the counsel was specifically asked as to how much time the defence would need to serve and procure the witnesses. In response thereto, the counsel had pleaded for 60 days time to serve and to procure the attendance of the witnesses. The trial Court was directed to pend the orders for 60 days. The order passed by this Court on 7.11.2011 is as CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 6 }:
under:-
"Inter-alia contends that the petitioner would suffer a serious prejudice to put up his defence in case the impugned order is allowed to stand. The evidence of the petitioner has been closed on the ground that he has not been able to procure the witnesses from Sudan. Senior counsel appearing for the petitioner contends that a reasonable time may be granted to him for procuring the witnesses from Sudan. Even the Embassy has sought time of 30 days.
Notice of motion for 23.1.2012.
The petitioner shall be granted 60 days time from today to procure the attendance of witnesses.
The trial Court, in the meantime, would pend orders for 60 days."
Thereafter, the petitioner has resorted to filing one application after another. On 9.12.2011, an application was filed for granting 12 weeks time for service of summons to the foreign witnesses. At that stage, the attention of the counsel was drawn to his own plea, seeking 60 days time to serve the witnesses but forgetting the same, the counsel pressed this application. In the interest of justice, this Court adjourned the case to 27.1.2012 with a direction to the counsel representing CBI to have instructions. The trial Court was directed to pend the decision till further orders. The detailed order passed on 11.1.2012 reads thus:-
"This petition came up for hearing on 7.11.2011. The CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 7 }:
petitioner has challenged the order, whereby his application for summoning witnesses from Sudan has been dismissed. The petitioner has, accordingly, filed this revision petition before this Court on the ground that he would suffer a serious prejudice to put up his defence. It was made out before the Court that it was beyond the competence of the petitioner to procure the witnesses from Sudan. He had, accordingly, prayed for requisite time to procure the presence of the witnesses from Sudan. At that time, it was stated before the Court that Embassy had sought time of 30 days. On the request of the counsel for the petitioner, 60 days time was granted to procure the presence of the witnesses. The trial Court was directed to pend the orders for 60 days. Application (Crl.Misc.No.49448 of 2011) was subsequently filed praying that 12 weeks time be granted to serve the summons on the foreign witnesses, which is the requirement of the Ministry of External Affairs. It is stated that the petitioner took summons from the trial court and gave the same to the reception officer, office of Ministry of External Affairs on 22.11.2011. The summons have now been returned with the remarks "please follow the procedure as per circular No.25016/17, dated 11.2.2009".
It is stated that Protocol Officer had informed the petitioner that he has not received the summons for serving on the foreign residents, which are not according CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 8 }:
to the guidelines contained in the said circular (Annexure P-20), copy of which the petitioner has now procured. It is, accordingly, prayed that the petitioner is left with no option, but to pray for extension of time for serving the summons on the witnesses, residents of Sudan, for which he has prayed for time. Notice of the application was issued.
Mr.Sumeet Goel appearing for the CBI prays for time to have instructions.
Adjourned to 27.1.2012.
In the meantime, the trial Court would pend the decision in this case till further orders."
Finally, when the case came up for arguments on 22.2.2012, the counsel for the petitioner was required to show the relevancy of evidence in order to examine the validity of his prayer.
The case had to be adjourned, when reference was made to some different orders passed by various Benches in connected petition or in the petition filed by the co-accused of the petitioner. In this manner, the prayer which was made for granting 60 days time on 7.11.2011 has continued till date, though a period of about 120 days has passed.
The petitioner seems to be somehow interested in delaying the final outcome of this case. The relevancy of the witnesses so sought to be summoned is explained only on the ground that they would come and depose that indeed the consignment was despatched to them and there has been no forgery CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 9 }:
of the documents as is alleged by the prosecution. Though the prosecution evidence as led is not before this Court, yet it can be observed that duty to prove charge of forgery as alleged would be of the prosecution. Forgery as alleged is apparently of the documents, which were submitted to the Bank, which would be available here in India. Still, if the petitioner really was interested in summoning these witnesses, he was required to take timely action. The petitioner could undertake this action when the prosecution was in progress. An undertaking was given on behalf of the petitioner to summon the defence witnesses at his own responsibility. Not only that, he undertook to conclude the defence evidence by August 2011. Merely because the prosecution took some time to examine witnesses, would not entitle the petitioner to seek time over and over again by highlighting this aspect. No one forced the petitioner to give this undertaking before the trial Court. In fact, the petitioner could be expected to first ascertain the legal position before filing application to summon these witnesses so that this prayer seeking proper time could be made at the first available opportunity. He has not done so. This also would not appear an innocent act on his part. May be, that the petitioner is really not interested in examining these witnesses but is only filing such applications ultimately to plead at the time of arguments that he had been denied the opportunity to lead defence evidence.
As already noticed, the responsibility to prove forgery would be on the prosecution and it is not understood as to how and for what the petitioner would wish to examine these witnesses. In any CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 10 }:
case, these are private witnesses and had a business dealing with the petitioner. If the petitioner genuinely was interested in examining these witnesses in his defence, it would have been rather easy for him to request them to appear. Perhaps, due to this reason only he had undertaken to produce the witnesses at his own risk. Before this Court also, the petitioner had only requested for 60 days time and his action in moving the application for extension just after a month of having obtained this order would itself indicate that he is only interested in delaying the trial and rather, may not be interested in producing these witnesses. No wonder, one of his co-accused is appearing in this case to plead for early disposal and has accused the petitioner for delaying the disposal of the case. The counsel appearing for the co-accused has pleaded that he would pray for early disposal of the case pending against him and has not pleaded for any time to examine any witness.
Reference here may also be made to Section 32 of the Indian Evidence Act, 1872. This Section provides that statements, written or verbal, of relevant facts made by a person who is dead, or who can not be found, or who has become incapable of giving evidence, or whose attendance can not be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, then such statements, written or verbal, become relevant in the cases enumerated in the Section. Thus, when a statement was made by a person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in a book kept in ordinary course CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 11 }: of business, or in discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed would be relevant fact. Certainly this is a case where attendance of witnesses from Sudan can not be procured without an amount of delay or expense, which would appear to be unreasonable. In any case, it was for the petitioner to examine this aspect or others and to take timely action.
Even while approaching this Court on earlier occasion and even now no thought was given to the requirement and application after application is being filed to buy time and delay the final disposal of this criminal case. In any case, the relevant documents would be the one, which were presented before the Bank to claim advance against the bills of goods sent to foreign country. They would be relevant to determine forgery. How some documents, which may be available in Sudan with some of the Companies to whom the alleged supply was made would be relevant is not explained in any manner. The petitioner otherwise has not been able to show much relevancy of these documents. Sufficient opportunity apparently has been provided to the petitioner to lead his evidence and now any further efforts and prayer being made apparently is with an aim to get some unfair advantage by pleading at the time of arguments that the petitioner was curtailed in his defence. That is neither made out from the facts in this case nor should such a plea be allowed to be raised on the basis of material on record. CRIMINAL REVISION NO.2737 OF 2011 (O&M) :{ 12 }: The petitioner can not be allowed to plead for unlimited opportunities to serve the witnesses. Sufficient opportunities and time has been granted to the petitioner, even after close of defence evidence. I am, thus, not inclined to further adjourn these proceedings on the plea that the petitioner be given 12 weeks clear time to serve summon on these witnesses through the Ministry of External Affairs as is pleaded.
The present petition is accordingly dismissed.
March 19, 2012 ( RANJIT SINGH ) khurmi JUDGE